A very classy thing to do

I have a hot temper. It used to be far worse than it is now. (Low T and all.)   Anyway, I remember a jury trial in Beaver City, Nebraska.   The trial went about 10 days, and we were all bone weary.  The plaintiffs’ lawyer pulled some stunt that galled me, and, after the judge left the bench, we started yelling at each other.  I came this close (about an inch) from punching the guy in the mouth.  I would have had it not been for my colleague who pushed me out of the courtroom.  Trial practice can be a very angry business.

In 1993, shortly after I became a district judge, I took over the handling of Klinger v. the Nebraska Center for Women.  That was a long simmering class action brought by female inmates against the Nebraska Department of Corrections.  The women claimed that their equal protection rights were being violated because Nebraska allegedly failed to provide programs to women inmates that were comparable to the programs provided male inmates.

Photo credit:  Nebraska Center for Women in York Nebraska.  Nebraska Department of Corrections.  To the extent, if any, that there is a claim of copyright, the photo is used pursuant to the "fair use" rationale in the United States for legal educational purposes and not for any commercial purpose.

Photo credit: Nebraska Center for Women in York Nebraska, from the Nebraska Department of Corrections. To the extent, if any, that there is a claim of copyright, the photo is used pursuant to the “fair use” rationale in the United States for legal educational purposes and not for any commercial purpose.

By the time I got the case, Judge Urbom (who by then was an icon) had gotten the case ready for trial.  He had appointed a highly regarded law firm to represent the women.  Gail Perry was the head lawyer for the women.  Gail is an extraordinary trial lawyer (and even better person).  Her opposition was outgunned, and the defense lawyer knew it.  So, that lawyer did all manner of annoying things to make Gail’s life miserable (or at least that was my perception).  By the time I got involved, the relationship between opposing counsel was at its nadir.

I dreaded trial.  It was going to take about 30 days, and that was only if we started very early and went very late every work day, and even some Saturdays.  As things were ramping up for trial, Laurie Smith Camp, from the Nebraska Attorney General’s office (and now my Chief Judge) was assigned to try the case.  I did not know Laurie then, but I quickly began to appreciate her.  Almost immediately, the waters began to calm.

The trial proceeded apace.  Gail and Laurie got along, and worked hard with each other to make the trial as smooth as possible.  They were both so bright and so nice that I even began to enjoy the daily grind.  Neither one gave ground to the other, but they only fought about stuff they should have fought about.  I was very impressed.

I ultimately ruled for Gail and her female clients in a very long opinion.  Indeed, I am embarrassed now when I read that damn thing–it is so earnest and so horribly tedious.  Laurie appealed and she won.  Saying that I was comparing apples and oranges, the Eighth Circuit (2 to 1) reversed and dismissed the equal protection claim which was the main claim. Laurie had argued before me, and to the Circuit, that the female inmates were not similarly situated to the male inmates.  The Circuit agreed.

I felt absolutely horrible for Gail.  She, and her partners, had invested a huge amount of time and money prosecuting the case, and they had done so by appointment.  Their only chance of recouping anything was if they won.  Since they didn’t win, they were out a hell of a lot of money.

And then something happened that I will always remember.  Laurie nominated Gail for the Robert Spire Award given by the Nebraska State Bar Association to honor lawyers who take their commitment to pro bono service seriously.  Of course, Gail received the award.

Laurie’s actions in nominating Gail struck me as a very classy thing to do.  I wish that sort of thing would happen more often.

RGK

%d bloggers like this: